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Monday, January 14, 2008

Consequences of McCain Pledging his Donor List

According to this story from Politico, John McCain's presidential campaign has pledged its fundraising list as collateral for a loan. The problem is that the campaign's Privacy Policy states that: "John McCain 2008, will not sell your information to third parties or any commercial entities." While the policy does state that "We may share information -- that you voluntarily provide us -- with like-minded organizations committed to the principles or candidates of the Republican party, Republican State Party organizations, local Republican groups and like-minded organizations" it seems unlikely that the commercial banks which made the loan are "like-minded organizations," so there seems to be a conflict between the pledge and the policy.

Unsurprisingly, the comments to the article were mostly focused on the politics of the situation (e.g., "It's just one more example of John McCain's total arrogance.", which was followed by "I think I'll donate more money right now to spite this attack"). However, I'm more interested in the legal implications of the pledge. For example, the Politico article says that McCain's campaign could be sued by its donors for breach of contract. Is that true? Well, I have two words for any donors seeking to sue the campaign: Good Luck. While I'm all for protecting consumer privacy, the courts have previously ruled in In re Northwest Airlines Litigation that Northwest's privacy policy did not create a contract with consumers, and that the data collected by Northwest belonged to Northwest (who could therefore divulge it in violation of the privacy policy) not to consumers (who wanted it maintained in confidence). Whether or not you like the ruling, there's no reason to believe that someone suing McCain's campaign for pledging the list would have better luck. In any case, even if a court were to look more favorably on someone suing the McCain campaign, it's too early to sue the campaign anyway. The list was pledged, but the campaign hasn't defaulted, so the pledge hasn't been redeemed. In other words, there hasn't been a sale, and so, at least for now, there is no breach of the policy for which the McCain campaign could be sued.

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